Fisher v. Huck , 50 Or. App. 635 ( 1981 )

BUTTLER, J.

Plaintiff, as an automobile guest passenger, seeks damages against his host driver for personal injuries sustained by him in a one car collision which occurred in British Columbia, Canada, when the vehicle driven by defendant left the highway when he fell asleep. In his original complaint, plaintiff alleged ordinary negligence in Count One, and gross negligence in Count Two. Defendant demurred to the negligence claim in Count One relying on ORS 30.115,¹ Oregon’s former guest-passenger statute. Plaintiff contended British Columbia law applied, and because British Columbia had repealed its guest-passenger statute in 1969, he was not required to establish gross negligence in order to recover from the host driver. The trial court held that Oregon law applied and sustained defendant’s demurrer. Plaintiff filed an amended complaint alleging only gross negligence, whereupon defendant moved for summary judgment, which was granted. Plaintiff appeals the order sustaining the demurrer and the order allowing summary judgment and dismissing his complaint. Because we reverse the order sustaining the demurrer, we need not reach the issues raised by the summary judgment.

Subsequent to entry of the judgment in this case, plaintiff filed an action in British Columbia involving the same accident. He alleged ordinary negligence by the driver and by the driver’s sister, who owned the vehicle. Defendant filed a motion in this court for a stay of this appeal pending disposition of the British Columbia action. That motion is denied.

Whether the demurrer to plaintiffs negligence count was properly sustained depends on whether Oregon law or British Columbia law governs this action. Gone are the days when the choice of law in tort cases was relatively definite and simple. Prior to Casey v. Manson Constr. Co., 247 Or 274, 428 P2d 898 (1967), the law of the place where the tort occurred controlled. Casey adopted the "most significant relationships” approach of the Restatement (Second) Conflict of Laws.² Since then, the choice of law has been based upon somewhat amorphous considerations, the evaluation of which depends in large measure on the semantics used by the court making the particular decision. Regardless of whether that approach represents progress, it was new and different when adopted, and is now with us.

When any court embarks on a determination of the "relevant policies of other interested states and the relative interests of those states in the determination of the particular issue” (Restatement, supra, n 2, § 6), the endeavor, in many instances, is like skeet shooting with a bow and arrow: a direct hit is likely to be a rarity, if not pure luck. With that chance of success in mind, we nock the arrow and draw the string.

The efforts of the Oregon court in two cases subsequent to Casey help to demonstrate the problem. In Erwin v. Thomas, 264 Or 454, 506 P2d 494 (1973), the issue was whether Washington or Oregon law applied to determine if plaintiff, a Washington resident, could recover for the loss of consortium of her husband, an Oregon resident, injured in Washington. Washington did not permit such actions; Oregon did. The court said:

"Let us examine the interests involved in the present case. Washington has decided that the rights of a married woman whose husband is injured are not sufficiently important to cause the negligent defendant who is responsible for the injury to pay the wife for her loss. It has weighed the matter in favor of protection of defendants. [Footnote omitted.] No Washington defendant is going to have to respond for damages in the present case, since the defendant is an Oregonian. Washington has little concern whether other states require non-Washingtonians to respond to such claims. Washington policy cannot be offended if the court of another state affords rights to a Washington woman which Washington does not afford, so long as a Washington defendant is not required to respond. The state of Washington appears to have no material or urgent policy or interest which would be offended by applying Oregon law.” 264 Or at 458-59.

Perhaps that analysis of the public policy of Washington is correct. But it is at least problematical whether it is any more correct than an analysis which concludes that Washington has decided that the rights of a married woman residing in Washington, whose husband is injured in Washington, may not recover for loss of consortium, it being against its public policy to recognize such rights regardless of the residency of the tortfeasor. If the Erwin court’s analysis of the Washington policy is correct, it would seem to follow that a Washington court would permit a loss of consortium claim against a non-resident defendant. That conclusion seems highly unlikely and under the alternative analysis just suggested that conclusion would not follow. By changing the semantics of the analysis only slightly, a different choice of law might result.

The court in Erwin, having analyzed the policy of Washington as it did, concluded that, even though Oregon’s policy was to recognize those rights, this state had no compelling interest in enforcing them in favor of nonresident married women whose husbands are injured outside the state. The result, the court concluded, was a standoff, because the policy of neither state had any significant relationship to the case. Accordingly, the court applied the law of the forum — Oregon. If Washington had been the forum state and used the same approach the Oregon court used, it would have applied Washington law. That does not seem to be a very satisfactory way of resolving the rights of the parties; consistency would lie only in that the law of the forum would be applied, but forum shopping would be encouraged.

In the most recent case involving choice of law, Tower v. Schwabe, 284 Or 105, 585 P2d 662 (1978), the issue was whether British Columbia or Oregon law applied where both the guest-passenger plaintiff and host-driver defendant were Oregon residents, and the accident occurred in British Columbia. At that time, British Columbia had repealed its guest-passenger statute, but Oregon had not. If the "most significant relationships” approach has any merit in tort cases, as opposed to the lex loci delicti, Tower appears to be an example of such a case. Both plaintiff and defendant were Oregon residents who were on a trip to British Columbia; at the time of the accident they were returning to Oregon. In other words, Oregon was the only state with any real interest: the dispute was between two Oregonians in an Oregon court concerning an accident that happened somewhere else. Unless the court were simply*.to revert to the pre- Casey rule requiring application of the lex loci delicti, Oregon law would have had to be applied because all significant relationships were to Oregon. Although the court did apply Oregon law, in doing so it discussed what it thought was behind British Columbia’s policy in repealing its guest-passenger statute. Conceding some difficulty in that undertaking, the court concluded:

"* * * Considered in the abstract, such a change may be said to serve at least one primary British Columbia interest. It makes it easier for a certain class of injured persons to obtain compensation for the harm they have suffered. Here, British Columbia is legitimately concerned only with the ability of its citizens to obtain compensation for their injuries. * * *” 284 Or at 109.

Even considering that the court used the word "citizens” and "residents” interchangeably in its opinion, there was nothing to indicate that the rule imposing liability on the host for ordinary negligence was intended to be applied only for the benefit of British Columbia residents. One can only surmise that British Columbia’s only "legitimate concern” was with the ability of its "citizens” to obtain compensation for their injuries on the presumed premise that the British Columbia government would be required, under its social welfare programs, to take care of the uncompensated guest, if a "citizen,” but that no such obligation would exist with respect to the non-citizen. However, we do not know that to be the case; but if it is, then it would seem to follow that if the guest is a British Columbia resident and is injured by an Oregon host in Oregon, British Columbia law should apply regardless of the forum. Whether the ancient maxim, "Once an Englishman, always an Englishman,”³ would prevail over Oregon’s stated policy (at the time) of protecting its hosts against injured and ungrateful guests, (Tower v. Schwabe, supra, 284 Or at 108), would present a true conflict.

Our purpose in discussing at length the Erwin and Tower cases is to point out the hazards involved where one state attempts to enunciate the public policy of another jurisdiction. Most courts have more than enough difficulty discerning the policies of the jurisdiction in which they sit. Moreover, as we view Tower, it was not necessary for the court to delve into British Columbia’s public policy in repealing its guest-passenger statute. All of the significant relationships militated in favor of applying Oregon law regardless of the British Columbia policy unless the place of the wrong were to control.

In the case at bar, we have the converse of Tower; the only common factor is that the accident in each case occurred in British Columbia. Here, the host driver was a resident of British Columbia and, according to the complaint, the guest was going to British Columbia for the purpose of taking prearranged employment and establishing residence there. Those facts are admitted for the purpose of the demurrer. Oregon’s only involvement is that it is the forum state. In all other respects, British Columbia has the only significant relationships and has as much interest in the application of its law as any jurisdiction could have in this kind of case. If Oregon has an interest, it is in protecting an Oregon host against an ungrateful guest under its guest-passenger statute in effect at the time of the accident.⁴ But the host here is not an Oregon resident and the statute enunciating the policy relied on has been repealed so that, notwithstanding its technical applicability to this accident, it is no longer the public policy of this state.

As we have pointed out, we believe the court’s language in Tower attempting to enunciate the British Columbia policy was unnecessary to its decision. We have also indicated that it is reasonable to conclude that British Columbia’s policy is to permit any guest passenger to obtain compensation against a negligent host driving on British Columbia highways. Because Oregon’s now defunct policy does not conflict with the British Columbia policy, British Columbia law ought to apply. The demurrer should have been overruled.

The dissent would apply Oregon law and therefore would affirm the sustaining of defendant’s demurrer, but would reverse the granting of summary judgment for defendant on Count II of plaintiff’s complaint. If we were to reach that question, we would agree with the latter conclusion reached by the dissent. We also point out that the facts developed in connection with the motion for summary judgment would not change our decision on the demurrer.

We reverse the trial court’s order sustaining defendant’s demurrer to Count I, vacate the judgment for defendant and remand for further proceedings.

Reversed and remanded.

1 At the time of this action, ORS 30.115 provided:

"No person transported by the owner or operator of a motor vehicle, an aircraft, a watercraft, or other means of conveyance, as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication. As used in this section:

«:}: :}: * * *

"(2) 'Gross negligence’ refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.”

2 Restatement (Second) Conflict of Laws, § 145, at 414 (1969), states:

"(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

"(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

"(a) the place where the injury occurred,

"(b) the place where the conduct causing the injury occurred,

"(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

"(d) the place where the relationship, if any, between the parties is centered.

"These contacts are to be evaluated according to their relative importance with respect to the particular issue.”

Restatement (Second) Conflict of Laws, § 6, at 10 (1969), states:

"(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

"(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

"(a) the needs of the interstate and international systems,

"(b) the relevant policies of the forum,

"(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

"(d) the protection of justified expectations,

"(e) the basic policies underlying the particular field of law,

"(f) certainty, predictability and uniformity of result, and

"(g) ease in the determination and application of the law to be applied.”

3 That maxim is to be contrasted with the even more ancient one, "When in Rome, do as the Romans do.”

4 Plaintiff does not contend that the repeal of the guest-passenger statute as applied to automobiles (Oregon Laws 1979, chapter 866) affects this case filed before the effective date of the statute.